Tradmark protection for Small Businesses

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Trademark Basics

What is A Trademark?

A trademark is any word, phrase, symbol or design which identifies and distinguishes a company’s goods or services from those of competitors. Some of the most famous examples are: Kodak® for film, Nike® for shoes, the golden arches of McDonald’s, and the distinctive curved shape of a bottle of Coca-Cola®. A note about the vernacular: Technically, the world of trademarks (often called marks’ for short) is made up of both ‘service marks’ which are use to identify or distinguish services and ‘trade marks’ which are use on goods and products. However, most people today use the term ‘trademark’ to refer to both service marks and trade marks.

What’s the Difference

Patents give the exclusive right to make, use and sell the design or mechanics of an invention. To be eligible for patent protection, an invention must be new (never before discovered) and unobvious (not just a logical next step). Patents are also registered at the USPTO, although the process is considerably more lengthy and expensive than trademark registration as the Patent Examiner must research all of the “prior art” (scientific research and articles) in the world to determine if the invention is new. A patent grants the owner the sole right to make or sell the invention for 20 years.
Copyrights protect the expression of original ideas or works of art. Works of art protected include books, plays, movies, paintings, sculptures, computer software, songs, etc. A modification of a previous expression of art by another individual can often be copyrighted. Copyrights are recorded by the Library of Congress and generally give the owner exclusive rights to the work for the author¹s lifetime plus 70 years.
Trademarks distinguish a company’s products or services from those of its competitors. A significant difference between trademark and copyrights and patents is that they may be renewed over and over again and can thus if properly maintained can be owned in perpetuity.

Q: I already registered my business name with the state, doesn’t that protect me?

A: All you did was notify the state of your name. Your corporate name is completely separate from your trademarks and does not protect use of your name outside the region.

Strong Vs. Weak Marks

Some trademarks are entitled to greater protection than others. There are five basic types of marks, in order from those with the most protection to the least, they are:

Coined: completely new and made up terms (such as Exxon® and Kodak®).

Arbitrary: not made up, but unrelated to the goods or services (such as Yahoo!®).

Suggestive: words which relate to the goods or services, but are not descriptive of them (such as “Apple-A-Day” for vitamins).

Descriptive: terms which can be used to refer to a product or services (such as “Wireless” for a cellular phone).

Generic: words which are commonly used to refer to a good or service, or answer the question “what is it?” (such as “Laptop” for a portable computer)

Coined, arbitrary and suggestive names are generally able to become registered trademarks, provided someone has not already registered a confusingly similar mark for a related product or service. Coined and arbitrary marks are given the ‘strongest’ protection and are thus the most desirable. Descriptive marks may sometimes be registered, but generally are afforded less protection. For this reason, descriptive marks are considered ‘weak.’ Generic trademarks are the weakest of all – they are entitled to little or no protection.
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